KUMAR SATISH KANTHA ROY Vs. SATIS CHANDRA CHATTERJEE

JUDGEMENT

(1.) The subject-matter of the litigation, which has culminated in this appeal, is a revenue paying estate bearing Touzi No. 2402 on the revenue-roll of the Collector of the 24-Perganahs. The annual revenue of the estate, which comprises the villages Atpur and Panditnagar, is Rs. 398-9-0. Default was made by one of the joint proprietors in the payment of revenue due on his share for the September instalment of 1914. At that time, a two-thirds share in the proprietary interest was vested in the plaintiffs and the remaining one-third in the father of the 4th defendant who, it is alleged, had granted a mortgage of that share to the plaintiffs. The entire estate was exposed for sale by the Collector for the recovery of the arrears due (Rs. 26-4-8) and was purchased by the 1st defendant on the 8th January 1915 for Rs. 9,200. The father of the 4th defendant, Hemadakantha Ray, in whose share the default had taken place, died a day or two later. The plaintiffs appealed to the Commissioner, but their appeal was dismissed on the 1st June 1915. On the 18th August 1915 the plaintiffs instituted the present suit for declaration that the sale was illegal and had been brought about by fraud on the part of the first three defendants; they prayed accordingly that the sale might be cancelled or a conveyance executed in their favour by the ostensible purchaser on receipt of the purchase money. The 1st defendant was Satischandra Chatterjee, the auction-purchaser on record. The 2nd defendant was Akshaykumar Chatterjee, alleged by the plaintiffs to have been an old enemy of theirs with whom they were at that time involved in litigation. The 3rd defendant was Sitanath Das, manager of Hemadakantha Ray, who was charged with the duty to pay Government revenue on behalf of his master. The plaint asserts that these three defendants entered into a conspiracy and decided to purchase the property at the auction sale in the name of the 1st defendant. The plaint further charges that the default was wilful and deliberate, made with a view to bring about the sale to the injury of the plaintiffs. The suit was defended by the 1st defendant alone, who filed his written statement on the 10th January 1916. He repudiated all the material allegations contained in the plaint, denied the charge of conspiracy, professed complete ignorance of the alleged deliberate default and fraud, and claimed to be the sole purchaser of the property, entirely on his own account, at the revenue sale. Upon these pleadings, the issues were framed on the 15th January 1916; the fifth issue raised the fundamental question in the suit: "Was the revenue sale brought about by collusion and fraud on the part of the defendants and was it legal and valid?" The Subordinate Judge answered this question against the plaintiffs and dismissed the suit. On the present appeal, which has been preferred by the plaintiffs, the only defendant who has entered appearance is the auction-purchaser Satischandra Chatterjee; the 2nd and 3rd defendants have been absent as they were throughout the proceedings in the Court below. After the appeal had been heard for some days, it became clear that the evidence of the 2nd defendant was necessary for the determination of the matters in controversy. Both the parties requested that he as well as his sons who had, according to the other evidence on the record, taken part in the transactions under investigation might be examined. The Court accordingly directed summonses to issue upon Akshaykumar Chatterjee and his three sons Taradas Chatterjee, Syamadas Chatterjee and Kalidas Chatterjee, and liberty was given to both sides to cross-examine these persons. Akshay, Taradas and Syamadas were examined but no questions were put to Kalidas. We have now to determine the points in dispute on the evidence taken by the Subordinate Judge and the Additional evidence taken in this Court upon the joint request of both parties. As we shall presently see, there is direct conflict of oral testimony upon the fundamental question in issue; it is consequently necessary to ascertain the points which are either admitted or proved beyond the possibility of controversy and then to test the allegations of the witnesses by reference thereto.

(2.) It is indisputable that default was deliberately made by the 3rd defendant in the payment of Government revenue due on the share of his master Hemadakantha Ray, the predecessor- in-interest of the fourth defendant. As the Subordinate Judge finds, the object was to injure the plaintiffs and the step was taken in collusion with the 2nd defendant, who, it was arranged, would purchase the entire estate, free from incumbrances, at the revenue sale. There is some discrepancy in the evidence as to the exact proportion in which the spoil was to be divided; the details of the proposed distribution are, however, not very material for our present purpose, and we need only observe that the story seems plausible that the 3rd defendant looked forward to a share for himself and another share for his master. The complicity of the 2nd defendant in what the Subordinate Judge calls a "nefarious plan," is proved beyond challenge. The oral evidence shows that he was approached long before the default was made, and there is unimpeachable contemporary documentary evidence as to what followed. On the day before the sale Taradas, the son of the 2nd defendant Akshay, sent the following telegram to his father who at the time was at Puri: Kumars Satis, Kshiroda, Hemada are joint proprietors of Touzi No. 2402, Mahal Atpur, 24-Perganahs, on Ganges near Kidderpur. Hemada did not pay revenue and will cause the sixteen annas Mahal to be sold to morrow. Hemada represents total income as Rs. 1,200 and requests us to buy the same in auction within ten thousand rupees and sell half to him. Going out to ascertain facts. Wire permission.

(3.) This telegram was sent at 12-45 P.M. and reached Puri at 1-30 p.m. We do not know the exact time when it reached the addressee, but at 3-30 p.m. Akshay despatched the following reply: May bid ten or twelve thousand if the income is as you represent.